Page:Federal Reporter, 1st Series, Volume 8.djvu/559

EOSS V. CHICAGO, M. A ST. P. EY. CO. 545 �exception, which is as follows: If a corporation employa several agents as fellow servants in the same common employment, and one of those servants is injured by the neglect or wrong of another, the corporation is not liable, unless it be that the servant who is guilty of the wrong or negligence was employed by the coœpany with knowl- edge that he was incompetent or negligent, or was continued in serv- ice by the company after notice of the fact that he was incompetent or negligent. �This brings us, gentlemen, to the first question in dispute in this case. It is alleged by the defendant here, as one of the grounds of defence, that the plaintiff was injured by the negligence of a fellow servant employed in the same common service with himself, and this makes it necessary for us to inquire what is meant in law by a fellow servant employed in the same common employment. It is very clear, I think, that if the company sees fit to place one of its employes under the control and direction of another, that then the two were not fellow servants engaged in the same common employ- ment within the meaning of the rule of law of which I am speaking. It is conceded here that this plaintiff was an engineer upon a freight train at the time of the accident ; that one McGlintock was the con- ductor upon that train ; and it is not seriously disputed that the accident was the resuit of the negligence of the conductor in failing to show to the engineer the order which he had received to stop the train at a station which I believe is called East Minneapolis. And, in order to determine this question, it will be necessary to refer to the general order of the company, which bas an important bearing upon it, regulating the delivery of orders concerning the running of trains. It is averred in the petition, and is admitted by the answer, that at the time of this accident there was a general order in force, issued by this company, for the guidance of its employes in cases of this sort, which is as follows : �" Conductors must, ia all cases, wMle running by telegraph or special orders, show the same to the engineer of their train before leaving stations where the orders are received. The engineer naust read and understand the order before leaving the station." �By this general order, gentlemen, as I understand and construe it, the company made the engineer, in an important sense, subordinate to the conductor. By it the conductor was made the medium through whom and by whom the compauy communicated its orders touching the running of trains to the engineer. The company saw lit to make v.8,no.8— 35 ��� �